Conkling v. Davies

53 How. Pr. 409

• Court: New York Supreme Court
• Decided: May 15, 1877
• Status: Published

Opinion

Van Brunt, J.

The plaintiff claims that the beneficiaries named in the deed are not necessary parties because the deed as drawn does not contain a power of revocation which she claims should have1 been inserted therein pursuant to her directions, and if such power of revocation was in the deed she would clearly have the right to the relief asked for in this action.

I am entirely unable to see why the beneficiaries are not entitled to be heard upon that question. By means of this action it is sought to deprive them of all interest under this deed without giving them an opportunity to be heard upon the question. They are certainly as necessary parties as the trustees under the deed, and any decree which the court might make in this action could not deprive them of the contingent interest which they had under, the deed, they 'not being parties to the action. The demurrer must therefore be sustained, with leave to the plaintiff to amend upon payment of costs.